Wright

I dissent. The majority’s singular misdefinition of a continuing offense promises to create serious difficulty for the trial and appellate courts that must follow it. Today’s result, moreover, is inconsistent with the teaching of Toussie v. United States (1970) 397 U.S. 112 [ 90 S.Ct. 858 , 25 L.Ed.2d 156 ] (Toussie), among other cases. And precisely for the reasons the majority identify—e.g., the indefinite extension of the statute of limitations and the elimination of ex post facto protections—they create deleterious policy that undermines a legislative balance between the needs to protect the public from recidivism and to protect individuals against arbitrary and retroactive punishment. The resulting imbalance may cause a miscarriage of justice against defendant. We should affirm the Court of Appeal’s judgment and leave it to the Legislature to change the statute if it desires to do so.

The People, represented by a district attorney, prosecuted defendant for violating subdivision (f) of Penal Code section 290. They first filed a felony information even though they alleged that defendant violated subdivision (f) “[o]n or about and between November 1994 and March 23, 1995.” In…

When a registered sex offender changes his or her residence address, the offender must notify the law enforcement agency of last registration within a specified period. (Pen. Code, § 290, subd. (f); further undesignated statutory references are to the Penal Code.) Prior to January 1, *524 1995, failure to provide such notification was a misdemeanor; thereafter, the Legislature declared it a felony. (Stats. 1994, ch. 867, § 2.7.) The question before us is whether felony prosecution is prohibited as ex post facto if the defendant’s address change and failure to notify occurred when the violation was classified as a misdemeanor. The answer turns on whether the Legislature intended section 290, subdivision (f), to describe a continuing affirmative duty. Considering the overall statutory scheme and purpose of section 290, we find the failure to comply with interim registration requirements is a continuing offense and therefore conclude felony prosecution is not ex post facto.

Factual and Procedural Background

By an amended two-count information filed September 11, 1995, the People charged petitioner James William Wright (defendant) with felony violation of section 290,…